Holding

The relaxation in TET pass marks granted by the State of Rajasthan under its March 23, 2011 policy is legal and valid, and migration of reserved‑category candidates to general seats is permissible provided they have not availed any other concession.

Summary

The case concerned the validity of a policy issued by the State of Rajasthan on 23 March 2011 that relaxed the minimum passing marks in the Teacher Eligibility Test (TET) for candidates belonging to reserved categories. General‑category candidates challenged the policy, arguing that the relaxation violated the 60% pass requirement prescribed in the NCTE guidelines and that it amounted to an impermissible concession in the recruitment process. The Supreme Court examined the NCTE notifications of February 2011 and its amendment of July 2011, concluding that the 5% relaxation mentioned therein pertained only to academic qualifications, not to TET, and that the State was expressly empowered by clause 9(a) of the guidelines to grant concessions in accordance with its own reservation policy. The Court held that the State’s relaxation of 10%‑20% in TET marks was lawful, and that reserved‑category candidates who scored higher than the last general‑category selectee could be migrated to general seats provided they had not taken any other concession. Consequently, the Court allowed the appeals, upheld the relaxation, and directed that the migration provision be applied.

Issues considered

Whether the relaxation in TET passing marks granted by the State of Rajasthan on 23 March 2011 is legally valid.
Whether the NCTE amendment of 29 July 2011 provides for a 5% relaxation in TET pass marks for reserved categories.
Whether reserved‑category candidates who secure higher marks than the last general‑category selectee can be migrated to general seats despite having availed the TET relaxation.

Legislation cited

Right of Children to Free and Compulsory Education Act, 2009s. 23, s. 23(2)

Subjects

Teacher Eligibility Testrelaxation of pass marksreservation policyRTE ActNCTE guidelinesmerit and migrationreserved categoryaffirmative actioneducational qualifications

Judgment

[2016) 7 S.C.R. 639

VIKAS SANKHALA & ORS. ETC. A
v.
VIKAS KUMAR AGARWAL & ORS. ETC.
(Civil Appeal Nos. 3545-3549 of2016)
OCTOBER 18, 2016 B
(A.K. SIKRI AND R.K. AGRAWAL, JJ.]
Right of Children to Free and Compulsory Education Act,
2009 - s. 23:
Qualifications for appointment of teachers - Passing of c
Teacher Eligibility Test-TET- Minimum pass percentage of TET-
Relaxation in passing marks in TET - Interference with - Held:
Specific authorization is given to School Management (Government,
local bodies, Government aided and unaided) to grant special
concession to different kinds of reserved categories mentioned
D
therein, which has to be in accordance with their extant reservation
policy - Giving concession to certain reserved category candidates
insofar as passing marks in TET is concerned, that by itself would
not affect the teaching quality - s. 23(2) itself recognises the power
for relaxing the minimum qualifications required of a person to be
eligible for appointment as primary teacher - For giving relaxation E
in passing marks in TET, different outlook and glance is attracted -
Except for State of Andhra Pradesh, no other State has granted
such wide range of concessions as State of Rajasthan did in its
letter dated 23.03.2011 - Very high percentage of relaxation may
amount to compromising with quality which may not be conducive
F
to maintaining standards of education - Need to look into and
reconsider this aspect to bring the relaxations within reasonable
limits - However, the Court not tinkering with the extant of relaxation
given in letter dated.23.03.2011 since recruitment tests have been
conducted and selected candidates are .nowcteaching for last number
of years - Constitution of India - Arts. 15, 16, 38, 39(a) and 46. G
Qualifications for appointment of teachers - Passing of
Teacher Eligibility Test-TET- Minimum pass percentage of TET-
Whether National Council for Teacher· Education-NCTE notification
dated July 29, 2011, amending paragraph ) of its earlier guidelines/
notification dated February 11, 2011, provides 5% relaxation to H
639 .
640 SUPREME COURT REPORTS [2016] 7 S.C.R.

A the reserved category for passing TET - Held: NCTE does not
provide any provision for relaxation in TET examination for reserved
category candidates but has left it to the State Governments to do
the needful in this behalf - Relaxation provided in the amended
para 3 has no relation whatsoever with TET but relates to the
qualifying marks in graduation and B.Ed. Etc - It cannot be said
B
that the provision for relaxation upto 5% in qualifying marks at all
relates to TET - Relaxation in passing TET is governed by para 9 of
the Notification dated February 11, 2011 - There is no amendment
to the said para - Amendment is incorporated in para 3 of the
principal notification dated February 11, 2011, which gives the
c rationale for including TET as a minimum qualification.
Policy of the State in letter dated March 23, 2011 deciding to
give relaxation ranging from 10% to 20% in TET marks to different
reserved categories as mentioned therein - Validity of - Held:
Relaxation prescribed in letter dated March 23, 2011 in pass marks
D in TET examination for different reserved categories mentioned
therein is legal and valid in law.
Reserved category candidates, who secured better than general
category candidates in recruitment examination, if could be denied
migration to general seats on the basis that they had availed
E relaxation in TET - Held: Migration from reserved category to
general category admissible to those reserved category candidates
who secured more marks obtained by the last unreserved category
candidates selected, subject to the condition that such reserved
category candidates did not avail any other special concession -
Concession of passing marks in TET would not be treated as
F concession falling in the said category.
Disposing of the appeals, the Court
HELD: 1.1 The amended sub-para (ii) of para 3 of the
Notification/Guidelines dated February 11, 2011 stipulates that
relaxation upto 5% in the qualifying marks is to be allowed to
G
candidates belonging to reserved categories. The submission of
the appellants who belonged to reserved category and are
beneficiary of relaxation provided by the State Government vide
its letter dated March 23, 2011 is that the relaxation provided in
the said amended para 3 has no relation whatsoever with TET
H and on the co~trary, it relates to the qualifying marks in graduation
VIKAS SANKHALA & ORS. ETC. v. VIKAS KUMAR 641
AGARWAL & ORS. ETC.

and B.Ed. Etc, is accepted. The submission of the respondent A
belonging to general category as well as those respondents who
belonged to reserved category but secured more than 55% marks
In TET that the provision for relaxation upto 5% in qualifying
marks at all relates to TET, cannot be accepted. Insofar as
qualifying marks for TET are concerned, they are prescribed in
B
para 9 of the guidelines dated :February 11, 2011. There is no
amendment to the said para. Amendment is incorporated in para
3 of the principal notification dated February 11, 2011. Original
para 3 gives the rationale for including TET as a minimum
qualification. Though, it is not understood as to why that para is
substituted by the said amended para vide notification dated July c
29, 2011. A reading of amended para 3 clearly brings out that it
incorporates two aspects. First aspect touches upon the training
to be undergone by a person and this training can be undergone
by those persons who have certain specified marks in graduation
and D.Ed. (Special Education) or B.Ed. (Special Education).
D
Training is for 6 months duration i.e. 6 months special programme
in elementary education. Insofar as persons having graduation
and B.Ed. qualification are concerned, minimum marks in the
graduation or B.Ed. are also prescribed. It is stipulated that
graduation should be with at least 50% marks and B.Ed.
qualification with at least 45% marks. However, those who have E
done D.Ed. (Special Education) or B.Ed. (Special Education), no
minimum marks in obtaining those qualifications arc prescribed.
What follows is that person who is graduate with B.Ed.
qualification, he/she should have minimum 50% marks in
graduation and 45% marks in B.Ed. qualification. It is in this
F
context second aspect of the amended provision in sub-para (ii)
of para 3 mentions about 'Reservation Policy' and allows
relaxation upto 5% in qualifying marks. This relaxation is,
therefore, clearly rclatable to marks in graduation and B.Ed.
qualification, meaning thereby insofar as reserved category
candidates such as SC/ST/OBC/PH are concerned, they would G
be treated as qualified to undergo the training in case they pass
graduation with minimum 45% marks and B.Ed. qualification with
minimum 40% marks. This relaxation of 5% does not relate to
TET at all. Had it been so, this notification dated July 29, 2011
would have amended para 9 and, particularly, sub-para (a) of para
H
642 SUPREME COURT REPORTS [2016] 7 S.C.R.

A 9 which deals with concessions to reserved category candidates
that has not happene<J and is left intact. [Paras 31, 32] [665-G-H;
66(j-A-H; 66?-A-BJ
1.2 The High Court in the impugned judgment also read
the said amended para 3 in the same manner as it is interpreted
B herein. The view of the High Court on this specific aspect is
affirmed. Thus, insofar as NCTE is concerned, it has not provided
any provision for relaxation in TET examination for reserved
category candidates but has left it to the State Governments to
do the needful in this behalf, as per para 9 of guidelines dated
February 11, 20ll which remains unaltered. [Para 33) [667-C;
c 668-B-C]
2.1 Passing of TET is an essential qualification, which is a
condition precedent for appointment as a teacher for Class I to
VIIl.It is in terms of qualifications letter prescribed by the NCTE
in its notification dated August 23, 2010 read with February 11,
D 2011. In the notification dated August 23, 2010, NCTE laid down
minimum eligibility qualifications for a person to be a teacher for
Class I to VIII. As per Clause l(i) and (ii), 45% to 50% marks
are required in academic qualification including Senior Secondary/
BA-B.Sc. This very notification, vide sub-clause (b) of Clause (9)
(i) and (ii), stipulates another eligibility condition, i.e. passing
E TET which needs to be conducted by. the. respective Governments
in accordance with guidelines framed by NCTE. There was no
provision providing relaxation to reserved category insofar as
· academic qualifications, i.e. Senior Secondary or graduation etc.,
are concerned. As far as TET is concerned, it was to be guided
F solely by the guidelines to be issued by NCTE. Clause (3)
prescribes nature of the training to be undergone and minimum
marks required in BA/Bsc./B.Ed. It was followed by notification
dated February 11, 2011 which prescribes 60% or more marks
in TET as pass/qualifying marks. At the same time, it laid down
that insofar as persons belonging to SC/ST, OBC, differently abled
G persons etc. are concerned, State Government may consider
giving concessions to them fn accordance with. their extant
reservation policy. It also required th~ States to give weightage ·
to TET score in carrying out the recruitment of teachers. It is in
pursuance to the said clause (9) of notification dated February
H l1 1 2011 that the State Government issued communication dated
VIKAS SANKHALA & ORS. ETC. v. VJKAS KUMAR 643
AGARWAL & ORS. ETC.

March 23, 2011 deciding to give relaxation in TET ranging from A
10% to 20% to different reserved categories. [Para 35) (668-E-
H; 669-A-B)
2.2 The State Government could not show any such policy
which existed prior to the issuing communication dated March
23, 20ll regarding concession to be given to the reserved B
category persons. That has become the reason for the High Court
to hold that there was no "extant" policy of the State Government
for giving relaxation to reserved category candidates. (Para 36]
(669-C]
2.3 First thing that has to be borne in mind is that after
prescribing 60% pass marks iu the TET examination, provision c
for relaxation is made in same para 9 giving liberty to the school
management (Government, local bodies, Government aided and
unaided) to consider giving concessions to different kinds of
reserved categories mentioned therein 'whicli has to be in
accordance with their extant reservation policy'. This brings out D
one important feature. NCTE has nowhere mandated that there
cannot be relaxation in pass marks in TET examination for
reserved category candidates or that the standard would remain
uniform irrespective of the fact as to whether a person belongs
to general category or any of the reserved categories insofar as
this examination is concerned. On the contrary, specific E
authorisation is given to grant special concessions. It, thus,
accepts in principle that relaxed standard for passing TET can
be prescribed by laying down a policy in this behalf. In fact, there
·is no challenge to this permissive provision. [Para 44) (672-E-G]
2.4 The Government may prescribe relaxed standards for F
such reserved categories, as it is in conformity with the spirit of
the constitutional pro".isions contained in Articles 15 and 16 read
with Articles 38, 39(a) and 46 of the Constitution, which are
enabling· provisions permitting the State to make special
provisions and provide relaxed standards for persons belonging G
to Scheduled Castes, Schedule Tribes .and socially and
educationally backwa.rd classes. (Para 45) (673-A-B)
2'.5 Keeping in mind the said ethos of the Constitution,
clause 9(a) of notification dated February 11, 2011 is interpreted
which permits concessio~s to be given .to certain clauses 'in
' H
644 SUPREME COURT REPORTS [2016] 7 S.C.R.

A accordance with their extant reservation policy'. As regards
whether it was necessary that there had to be an "existing" policy
before the State Government issued its letter dated March 23,
2011 or laying down of such a policy in communication dated
March 23, 2011 itself, may be for the first time, would fulfill the
requirement of "extant policy". No condition is found in clause
B
9(a) for 'pre-existing' reservation policy. On the contrary, the
provision only mentions that if there is a reservation policy
providing concessions to the persons belonging to SC/ST, OBC,
differently abled persons etc., concessions can be given in
accordance with the said policy. Even if there was no such policy
c in existence as on the date when NCTE issued guidelines dated
February 11, 2011, it would not mean that State Governments
are precluded from formulating such reservation policy even
thereafter..Para 9(a) uses the expression 'extant' reservation
policy and not 'pre-existing' reservation policy. The submission
that a holistic reading of para 9 of the guidelines would mean that
D
at the time of recruitment process, the school managements were
being given liberty to consider and provide for concessions to
reserved category candidates in TET qualifying marks is
accepted. Thus, it becomes clear that the word 'extant' means
which remains or survives. To give a practical interpretation to
E clause 9 of guidelines dated February 11, 2011, the phrase 'extant
reservation policy' should be read to mean the policy surviving
at the time of TET examination or at the most at the time of
recruitment. Any other interpretation of the said phrase would
be totally impracticable and would deprive the State for taking a
decision to give relaxation to reserved category candidates. Such
F
interpretation cannot be applied thereby seizing the powers of
the State in recognising reserved categories and to give
relaxations and to modify them from time to time with changing
socio-economical conditions. The advertisement issued by the
local authorities for the recruitment of teachers in 2012 as well
G as in 2013 specifically contains clause 7(b) that the candidate is
required to be passed in TET conducting by State ofRajasthan in
accordance with the guiding principals issued by NCTE. This
would meet the requirement of 'extant reservation policy' of the
State. [Para 46] (673-C-H; 674-A~B)

H 2.6 It is pointed out that except for the State of Andhra
VIKAS SANKHALA & ORS. ETC. v. VIKAS KUMAR 645
AGARWAL & ORS. ETC.

Pradesh, no other State has granted such wide range of A
concessions as the State of Rajasthan did in its letter dated March
23, 2011. This is an aspect which needs to be looked into and
needs to be reconsidered by the States inasmuch as very high
percentage ofrelaxation may amount to compromising with quality
which may not be conducive to maintaining standards of education.
B
However, the Court is not tinkering with the extant of relaxation
given in letter dated March 23, 2011 because of the reason that
on that basis, two recruitment tests have been conducted and
candidates who have been selected are now teaching for last
number of years. However, for future selections in this behalf,
the State Government is impressed upon to consider this aspect c
and bring the relaxations within reasonable limits. [Para 47) [674-
C-E]
2. 7 The High Court is also right in remarking that in order
to impart quality education, those teachers are needed who are
processed of essential aptitude and ability to meet the challenged D
of teaching at the primary and upper primary levels. No doubt,
these are important considerations to achieve the laudable
objects. For this purpose, if passing of TET examination is treated
as minimum essential qualification for a person to be eligible for
appointment as primary teacher, that cannot be countenanced.
However, when it comes to giving concession to certain reserved E
category candidates insofar as passing marks in TET is concerned,
such a provision by itself will not affect the teaching quality.
Section 23(2) itself recognises the power for relaxing the minimum
qualifications required of a person to be eligible for appointment
as primary teacher. When it comes to the question of giving F
relaxation in passing marks in TET, different outlook and glance
stands attracted. [Para 48] [674-G-H; 675-A-B]
2.8 When the Constitution envisages equal respect and
concern for each individual in the society and the attainment of
the goal requires special attention to be paid to some, that ought G
to be done. Giving of desired concessions to the reserved
category persons, thus, ensures equality as a levelling process.
At jurisprudential level, whether reservation policies are defended
on compensatory principles, utilitarian principles or on the
principle of distributive justice, fact remains that the very ethos
of such policies is to bring out equality, by taking affirmative H
646 SUPREME COURT REPORTS [2016] 7 S.C .R.

A action. Indian Constitution has made adequate enabling
provisions empowering the State to provide such concessions.
[~ara 51] [677-B-C]

State of Madhya Pradesh & Anr. v. Kumari Nivedita
Jain & Ors. (1981) 4 SCC 296:1982 (1) SCR 759; M.
B Nagaraj & Ors: v. Union of India & Ors. (2006) 8 SCC
212:2006 (7) Suppl. SCR 336; Dr. Jagadish Saran &
Ors. v. Union of India (1980) 2 SCC 768:1980 (2) SCR
831 - referred to.
2.9 The State has a legitimate and substantial interes.t in
c ameliorating or eliminating where feasible, the disabling effects
of identified discrimination. It is a duty cast upon the State, by
the Constitution, to remedy the effects of "societa·l
discrimination". The provision for relaxation in TET pass marks
has to be looked into from this angle which is in tune with the
constitutional philosophy. After all it only ensures that such
D candidates belonging to reserved category become eligible for
appointment as primary teachers. On the other hand, when it
comes to selection process such reserved category candidates
have to compete with general category candidates wherein due
regard for merit is given. Therefore, only those candidates
E belonging to reserved category who are found meritorious in
selection are ultimately appointed. In this manner the two
constitutional goals, that of rendering quality education on the
one hand and providing "equality of opportunity" to the
unprivileged class on the other hand, are adequately met and
rightly balanced. (Para 54] [681-C-E)
.F
2.10 The interpretation given by the High Court cannot be
accepted. The question No. l is answered holding that relaxation
prescribed in letter dated March 2J, 2011 in pass marks in TET
examination for different reserved categories mentioned, is legal
and valid in law. (Para 55] (681-F]
G
3.1 As regards whether relaxation in TET pass marks would
amount to concession in the recruitment process, the High Court
has held to be so on the premise that para 9(a) dealing with such
relaxation in TET marks forms part of the document which relates
to the recruitment procedure. It is difficult to accept this rationale
H
VIKAS SANKHALA & ORS. ETC. v. VIKAS KUMAR 647
AGARWAL & ORS. ETC.

or analogy. Para 9 which provides for concessions that can be A
given to certain reserved categories deals with 'qualifying marks'
that is to be obtained in TET examination. Thus, a person who
passes TET examination becomes eligible to participate in the
selection process as and when such selection process for filling
up of the posts of primary teachers is to be undertaken by the
B
State. On the other hand, when it comes to recruitment of
teachers, the method for appointment of teachers is altogether
different. Here, merit list of successful candidates is to be
prepared on the basis of marks obtained under different heads.
One of the heads is marks in TET. So far as this head is concerned,
20% of the marks obtained in TET are to be assigned to each c
candidate. Therefore, those reserved category candidates who
secured lesser marks in TET would naturally get less marks under
this head. It is demonstrated with an example. Suppose a reserved
category candidate obtains 53 marks in TET, he is treated as
having qualified TET. However, when he is considered for
D
selection to the post of primary teacher, in respect of allocation
of marks he will get 20% marks for TET. As against him, a general
candidate who secures 70 marks in TET shall be awarded 14
marks in recruitment process. Thus, on the basis of TET marks
reserved category candidate has not got any advantage while
considering his candidature for the post. On the contrary, "level E
playing field" is maintained whereby a person securing higher
marks in TET, whether belonging to general category or reserved
category, is allocated higher marks in respect of 20% of TET
marks. Thus, in recruitment process no weightage or concession
is given and allocation of 20% of TET marks is applied across
F
the board. [Para 60] [684-F-H; 685-A-E]
3.2 Once this vital differentiation is understood, it would
· lead to the conclusion that no concession becomes available to
the reserved category candidate by giving relaxation in pass
marks in TET insofar as recruitment process is concerned. It
only enables them to compete with others by allowing them to G
participate in the selection process. In this backdrop, irrespective
of circular dated May 11, 2011, the reserved category candidates
who secured more marks than marks obtained by the last
candidate selected in general category, would be entitled to be
H
648 SUPREME COURT REPORTS [20 I 6] 7 S.C.R.

A considered against unreserved category vacancies. However, it
would be subject to the condition that these candidates have not
availed any other concession in terms of number of attempts,
etc., except on tee and age. [Para 61) [685-F-H] ·
3.3 Provision of giving 20% marks ofTET score was applied
B to all candidates irrespective of the category to which he/she
belongs and, therefore, no concession or relaxation or advantage
or benefit was given in this behalf which could disturb the level
playing field and tilt advantage in respect of reserved category
candidate. On the contrary, the reserved category candidates who
had secured less marks in TET examination are given lesser
c marks in the recruitment process on the application of the formula
of allocating 20% marks of TET score. Question No. 3 is
answered accordingly. [Para 62] [687-F-G]
3.4 Those reserved category candidates who secured pass
marks on the application of relaxed standards as contained in the
D extant policy of the Government in its communication dated March
23, 2011 to be treated as having qualified TET examination and,
thus, eligible to participate in the selection undertaken by the
State Government. Migration from reserved category to general
category shall be admissible to those reserved category
E candidates who secured more marks obtained by the last
unreserved category candidates who are selected, subject to the
condition that such reserved category candidates did not avail
any other special concession. It is clarified that concession of
passing marks in TET would not be treated as concession falling
in the aforesaid category. (Para 63) [687-H; 688-A-B]
F
Unni Krishnan. J.P. & Ors. v. State of Andhra Pradesh
& Ors. (1993) 1 SCC 655:1993 (1) SCR 594;
KManjusree v. State ofAndhra Pradesh & Am: (2008)
3 SCC 512: 2008 (2) SCR 1025; Vijendra Kumar Verma
v. Public Service Commission, Uttarakhand & Ors.
G (2011) 1 SCC 150: 2010 (12) SCR 944; Jitendra J:(umar
Singh & Am: v. State of Uttar Pradesh & Ors. (2010) 3
SCC 119: 2010 (1) SCR 325 - referred to.
Case Law Reference

H
1993 (1) SCR 594 referred to Paral
VIKAS SANKHALA & ORS. ETC. v. VIKAS KUMAR 649
AGARWAL & ORS. ETC.

19~Z (1) SCR 759 referred to Para 51 A
2006 (7) Suppl. SCR 336 referred to Para 52
19~Q (2) SCR 831 referred to Para 53
2008 (2) SCR 1025 referred to Para 57
2010 (12) SCR 944 referred to Para 58 B

. 2oiQ (1) SCR 325 referred to Para62
CIVIL .<\PPELLATE JURISDICTION: Civil Appeal Nos. 3545-
3549 of2016.
From the Judgment and Order dated 02.07.2013 of the High Court c
of Judicat•.!re for Rajasthan at Jaipur Bench Jaipur in D. B. Civil Special
Appeal (Writ) Nos. 14 76, 14 70, 1496, 1502 and 1518 of2012
WITH
Civil Appeal Nos. 3550-3555, 3556-3559, 3560, 3561, 3562, 3563-
3566, 3567, 3568, 3569 and 3570 of2016. D

Sushi I Kumar Jain, Vivek Kumar Tankha, Ashwini Mata, Sr. Advs.,
Ms. Aishwarya Bhati, T. Gopal, Di lip Kumar Nayak, Shiv Avtar Singh,
IrshadAhmad, Anurag Rawat, Sudhir Kumar, Naresh Kaushik, Vardhman
Kaushik, Manoj Joshi, Mrs. Lalita Kaushik, Ms. Christi Jain, Abhinav
Gupta, Ms. Priyal Jain, Ms. Ankita Gupta, Manu Maheshwari, Vigyan E
Shah, Ms. Pratibha Jain, Puneet Jain, Kamlesh Sharma, Rakesh Dahiya,
Hanuman Singh, Sachin Pujari, Rishabh Sancheta, T. Mahipal, Pranaya
Kumar Mohapatra, Mil ind Kumar, Rahul Verma,Advs. for the Appellants.
S. S. Shamshery, AAG, Ms. Mahima Gupta, Kirtiman Singh, Gopal
Singh, Irshad Ahmad, H. D. Thanvi, Sarad Kumar Singhania, Gopal F
Shankar Narayan, Shobhit Tiwari, Lal Pratap Singh, Umesh Pratap Singh,
Vikram Singh Arya, R. C. Kohli, Pradeep Aggarwal, Brijesh Kumar
Singh, Amit Sharma, Ishu Prayas, Ms. Ruchi Kohli, Gaurav Sharma,
Dhawal Mohan, Ms. Vara Gaur, Ajay Choudhary, Advs. for the
Respondents. G
The Juctgment of the Court was delivered by
A.K. SIKRI, J. I. The Statement of Objects and Reasons of the
Right of Children to Free and Compulsory Education Act, 2009
(hereinafter referred to as the 'RTE Act') recognises one of the most
H
650 SUPREME COURT REPORTS [2016) 7 S.C.R.

A profound underlying principle contained in the Constitution, viz. the crucial
role of universal elementary education for strengthening the social fabric
of democracy through provision of equal opportunities to all has been
accepted, since inception of our Republic. Other, and equally significant
principle that it recognises, is that, in order to ensure equal opportunities
to all citizens, it is necessary that elementary education is provided to
B
one and all. Keeping in view this spirit, obligation was imposed upon the
State, as per Article 41, read with Article 45, of the Constitution to make
effective provisions for securing the right to education, among other.
Thus, it is one of the Directive Principles of State Policy enumerated in
the Constitution that the State shall provide free and compulsory education
c to all children. In order to make it a reality, this Court in the case of
Unni Krishnan, J.P. & Ors. v. State of Andlira Pradesh & Ors. 1
stretched the limits of Article 45 by reading right to free education as a
fundamental right of children upto the age of 14 years so as to enable
the children up to the age of 14 years to receive the education as a
matter of right. Law Commission also supported it by making
D
recommendation" to the Parliament to make suitable amendment in the
Constitution. Realising its constitutional commitment, the Parliament
obliged, and Article 21-A was added vide the Constitution (Eighty Sixth
Amendment) Act, 2002 in the following manner:
Article 21-A. Right to education. - The State shall
E provide free and compulsory education to all children of
the age of six to fourteen years in such manner as the State
may, by law, determine."
Simultaneously, Article 45 of the Constitution was also substituted
with the following A11icle:
F
"Article 45. Provision for early childhood care and
education to children below the age of six years. -
The State shall endeavour to provide early childhood care
and education for all children until they complete the age of
six years."
G
2. Notwithstanding the aforesaid provisions in the Constitution and
significant spatial and numerical expansion of elementary schools in the
country, goal ofuniversal education continued to allude us. It was found
that number of children, particularly children from disadvantaged groups
1
(I993J 1sec645
H 'Report No. 165 of the Law Commission of India
VIKAS SANKHALA & ORS. ETC. v. VIKAS KUMAR 651
AGARWAL & ORS. ETC. [A. K. SIKRI, J.]

and weaker sections, who drop out ofschool before completing elementary A
education, remain very large. It was also noticed that the quality of
learning achievement is not always entirely satisfactory even in the case
of children who complete elementary education. Having regard to the
aforesaid harsh realities, the Parliament enacted the RTE Act with
following objects in mind: 8
"(a) that every child has a right to be provided full time
elementary education of satisfactory and equitable quality
in a fo1mal school which satisfies certain essential norms
and standards;
(b) 'compulsory education' casts an obligation on the c
ap!'ropriate Government to provide and ensure admission,
attendance and completion of elementary education;
(c) 'free education' means that no child, other than a child
who has been admitted by his or her parents to a school
which is not supported by the appropriate Government, shall D
be liable to pay any kind of fee or charges or expenses
which may prevent him or her from pursuing and completing
elementary education;
(d) the duties and responsibilities of the appropriate
Government, local authorities, parents, schools and teachers E
in providing free and compulsory education; and
(e) a system fc~ protection of the right of children and a
decentralized grievance redressal mechanism."
3. It hardly needs to be emphasized that for turning the provision
F
of every child to have free and compulsory education into reality, not
only sufficient numberofschools are required with all necessary facilities
and infrastructure, adequate and qualified teaching staff shall also be
needed to fulfill this noble purpose. It is for this reason that apart from
other provisions in the RTE Act, provisions like Sections 23 to 27 are
inserted in the said Act to cater this requirement. G
4. For the purpose of present appeals, it is not necessary to refer
to each of these provisions. As we are concerned with the educational
and other qualifications that are needed for appointment of the teaching
staff, the provision directly touching upon this aspect is Section 23 of the
H
652 SUPREME COURT REPORTS [2016] 7 S.C.R.

A RTE Act, which reads as under:
"23. Qualifications for appointment and terms and
conditions of service of teachers: (I) Any person
possessing such minimum qualifications, as laid down by
an academic authority, authorised by the Central
B Government, by notification, shall be eligible for appointment
as a teacher.
(2) Where a State does not have adequate institutions
offering courses or training in teacher education, or teachers
possessing minimum qualifications as laid down under sub-
c section (I) are not available in sufficient numbers, the
Central Government may, if it deems necessary, by
notification, relax the minimum qualifications required for
appointment as a teacher, for such period, not exceeding
five years, as may be specified in that notification:

D Provided that a teacher who, at the commencement of this
Act, does not possess minimum qualifications as laid down
under sub-section (I), shall acquire such minimum
qualifications within a period of five years.
(3) The salary and allowances payable to, and the terms
E and conditions of service of, teachers shall be such as may
be prescribed."
5. Since minimum qualifications are to be laid down by an academic
authority authorised by the Central Government by notification, such an
authority which is so authorised by the Central Government is the National
Council for Teacher Education (for short, 'NCTE'). Thus, NCTE is
F
competent to lay down the minimum qualifications which a person needs
to possess to make him eligible for appointment as a teacher.
6. NCTE fulfilled this obligation in the form ofNotification dated
August 23, 2010, published on August 25, 2010 in the Gazette oflndia,
whereunder minimum qualifications for appointment as teachers were
G
laid down. Apart from other educational qualifications prescribed therein,
the said Notification also mandates passing of Teacher Eligibility Test
(for short, 'TET') and reads as follows:
"Pass in the Teacher Eligibility Test (TET), TO BE
CONDUCTED BY THE APPROPRIATE Government in
H
VlKAS SANKHALA & ORS. ETC. v. VIKAS KUMAR 653
AGARWAL & ORS. ETC. [A. K. SlKRI, J.]

accordance with the Guidelines framed by the NCTE for A
the purpose."
7. As is clear from the above, such a TET is to be conducted by
the appropriate State Government, i.e. respective State Governments,
though in accordance with the guidelines framed by NCTE for this
purpose. It may also be mentioned at this stage that passing of the said 8
TET is a mandatory condition without which a candidate is not eligible to
participate in the recruitment process for appointment as a teacher. NCTE
also formulated the guidelines, which were forwarded by it to the
Secretaries/ Commissioners of Education of State Government/Union
Territories vide its letter dated February 11, 2011. In these guidelines, it
was specified that the minimum pass percentage ofTET is 60. At the
c
same time, it enabled the State Governments to give concessions to
persons belonging to SC/ST, OBC, differently abled persons etc. 'in
accordance with their extant reservation policy'. Para 9 of these
guidelines stipulating the aforesaid conditions reads as under:
"Qualifying marks- D
9. A person who scores 60% or more in the TET exam will
be considered as TET pass. School managements
(Government, local bodies, government aided and unaided)
(a) may consider giving concessions to persons belonging E
to SC/ST, OBC, differently abled persons, etc., in
accordance with their extant reservation policy;
(b) should give weightage to the TEI scores in the
recruitment process; however, qualifying the TEI would
not confer a right on any person for recruitment/employment
F
as it is only one of the eligibility criteria for appointment."
In para 9, the extent of percentage to which the relaxation could
be granted in the qualifying marks for TEI was not stipulated and it was
mentioned that the State Governments could give such concessions in ·
accordance with their extant reservation policy.
G
8. Para 3 mentions about the training which was to be undergone
by a person. It would be apposite to reproduce this para as it has some
bearing for the purposes of the instant appeals. The same is as under:
"3. Training to be undergone. - A person -
(a) with B.A./B.Sc. with at least 50% marks and B.Ed. H
654 SUPREME COURT REPORTS [2016] 7 S.C.R.

A qualification shall also be eligible for appointment for Class
I to V up to l SI January, 2012, provided he undergoes, after
appointment, an NCTE recognised 6 month special
programme in Elementary Education.
(b) with D.Ed. (Special Education) or B.Ed. (Special
B Education) qualification shall undergo, after appointment,
an NCTE recognised 6 month special programme in
Elementary Education."
9. Subsequently, vide Notification dated July 29, 2011, the aforesaid
letter dated February 11, 2011 was amended. It, inter alia, prescribed
c that relaxation up to 5% in the qualifying marks to the candidates belonging
to reserved categories could be accorded.
l 0. New para 3 of the Notification dated February 11, 2011,
substituted in place of original para 3, is to the following effect:
D "Ill. For para 3 of the Principal Notification the following
shall be substituted, namely:
(i) Training to be undergone. -A person -

(a) with Graduation with at least 50% marks and B.Ed.
E qualification with at least 45% marks and 1 year Bachelor
in Education (B.Ed.), in accordance with the NCTE
(Recognition Norms and Pr.ocedure) Regulations issued
from time to time in this regard, shall also be eligible for
appointment to Class I to V up to ISI January, 2012, provided
he/she undergoes, after appointment as NCTE recognized
F 6 month Special Programme in Elementary Education;
(b) With D.Ed. (Special Education) or B.Ed. (Special
Education) qualification shall undergo, after appointment
an NCTE recognised 6 month Special Programme in
Elementary Education.
G
(ii) Reservation Policy:
Relaxation up to 5% in the qualifying marks shall be allowed
to the candidates belonging to reserved categories, such as
SC/ST/OBC/PH."
H
VIKAS SANKHALA & ORS. ETC. v. VIKAS KUMAR 655
AGARWAL & ORS. ETC. [A. K. SIKRI, J.]

This amendment has given rise to another incidental but connected A
issue, viz. whether 5% relaxation relates to the pass marks which are to
be attained in TET exam? We shall advert to this and other questions,
falling for our determination, at the appropriate stage. Since we are
now stating the events leading to the dispute, let us complete this narration
of facts, here.
B
11. After the issuance of the Notification dated February 11, 2011
by the NCTE, the State Government herein, i.e. the State of Rajasthan,
issued the letter dated March 23, 2011 to the concerned authorities
conveying its decision to grant relaxation in minimum pass marks in the
TET to reserved category candidates in the following manner:
c
"(a) I 0% to persons belonging to SC, ST, OBC, SBC and
all women belonging to the general category.
(b) 15% to all women belonging to SC, ST, OBC, SBC and
widowed and divorced women.
(c) 20% to persons covered under the definition of"persons D
with disability" under clause (t) of Section 2 of the Persons
')'ith Disabilities (Equal Opportunities, Protection of Rights
and Full Participation) Act, 1995."
12. As per the aforesaid communication dated March 23, 20H of
the State Government, candidates belonging to SC/ST, OBC, SBC and E
women belonging to General category were to be given I 0% relaxation
in pass marks in TET. Thus, those belonging to these categories who
secured 50% marks were treated as having qualified TET. They were
allowed to appear in the selection process which was undertaken
thereafter some time in June 2012 and results thereof were declared in
F
August 2012. Many such persons were found eligible and selected at
different districts in the State ofRajasthan. They were given appointment
orders-and were also issued joining orders.
13. At this stage, many candidates belonging to the General category
filed writ petitions in the High Court of Rajasthan challenging their
G
selection on the ground that minimum percentage for passing TET was
60% and, therefore, all those candidates belonging to the reserved
categories who secured less than 60% in TET could not be declared as
having passed TET and were, therefore, ineligible to participate in the
selection process. Ultimately, the ,learned Single Judge of the High Court
H
656 SUPREME COURT REPORTS [2016] 7 S.C.R.

A decided all these writ petitions vide common judgment dated October
06, 2012 thereby partly allowing the said writ petitions and holding that
the ordor dated March 23, 2011 of the State Government could not be
allowed to stand as the relaxation/concession in qualifying marks was
not legal or valid. It was also held that as per para 9 of the guidelines
contained in letter dated February II, 2011 issued by the NCTE,
B
concession could be given to persons belonging to SC/ST, OBC, differently
abled persons, etc. only 'in accordance with their extant reservation
policy' and insofar as the State of Rajasthan is concerned, it could not
show any "extant'' reservation policy warranting this concession. The
State Government challenged the said decision by filing appeals before
c the Division Bench. Likewise, persons belonging to reserved categories
who had been selected and their selection set aside by the learned Single
Judge, also preferred appeals. In all, 29 appeals were filed which have
been decided by a common judgment dated July 02, 2013 by the Division
Bench of the High Court. Though the Division Bench did not agree with
some of the reasons given by the learned Single Judge, it dismissed all
D
the appeals by given its own reasons. It is in this backdrop that the State
Government as well as the selected candidates belonging to the reserved
category have felt aggrieved by the impugned decision making the same
subject matter of the present appeals.
14. Some developments which have taken place after the filing of
E various special leave petitions may also be noted at this stage.
}5. Vide order dated July 26, 2013, this Court's order in SLP(C)
No. 23508 of2013 stayed the operation of the impugned judgment for
three months. In the meanwhile, State ofRajasthan started fresh process
for recruitment of teachers by advertisement dated September 04, 2013
F (subject to decision of this Court). District-wise written examination was
held for recruitment of the year 2013 for total 20,000 posts. The reserved
category candidates who had passed TET in 2011 with relaxations as
per State policy dated March 23, 2011, applied in the recruitment of
2013. During the pendency of the matter before this Court, appointments
G were made by the respective local bodies with respect to recruitment of
2012 giving relaxation in accordance with the State policy dated March
23, 2011 and also allowing migration as per policy dated May 11, 2011
subject to decision of this Court.
The participants of reserved category candidates in recruitment
H process of2012 and 2013 preferred SLP(C) No. 31109of2014 wherein
VIKAS SANKHALA & ORS. ETC. v. VIKAS KUMAR 657
AGARWAL & ORS. ETC. [A. K. SIKRI, J.]

this Court issued notice and allowed the appellant Nos. 8 to 13 belonging A
to 2013 recruitment, to file SLP. In March, 2015, result declared with
regard to recruitment of2013 giving relaxation in accordance with State
policy dated March 23, 2011. However, appointments are not given to
reserved category candidates availing relaxation although seats have
been kept vacant. Moreover, migration to general seats was not allowed.
B
The appellant in SLP(C) No. 31109of2014 belonging to 2013 recruitment
moved I.A. No. 14 of 2015 seeking direction to the State to prepare
merit list of 2013 recruitment in the same manner as done in 2012
recruitment giving benefit of relaxation and migration. In fact, after
2011, TET was again conducted by the State in 2012. The reserved
category candidates who had passed TET with relaxations in 2011 did c
not appear in 2012 TET since they were declared pass in 2011 TET
itself otherwise they would have availed the opportunity to improve their
TET scores by appearing in TET in 2012.
16. We may point out at the outset that insofar as issue of
concession/relaxation in TET is concerned, it has three facets, viz: D
(i) whether relaxation in passing marks for TET was validly given
by the State Government in its letter dated March 23, 2011 and al I such
candidates belonging to the reserved categories can be treated as having
passed TET on obtaining marks as per relaxed standards?
(ii) whether no relaxation of any nature could be given by the E
State Government and, therefore, it was incumbent upon the persons
belonging to reserved categories as well to secure 60% marks in TET to
treat them as qualifying the said TET?
OR
F
(ii) relaxation to the extent of 5% was permissible, as provided by
NCTE vide its amendment Notification dated July29, 2011 and, therefore,
those who secure 55% or above could be treated as successful in TET?
I 7. Insofar as General category candidates are concerned, who
were the writ petitioners in the High Court, they maintained that minimum
G
qualifying marks were 60% in the absence of any extant reservation
policy granting such concession. According to them, the State
Government could not produce any such policy before the High Court
and even before us and it was accepted that there was no such policy.
18. Insofar as candidates belonging to the reserved categories are
H
658 SUPREME COURT REPORTS [2016] 7 S.C.R.

A concerned, they are divided into two groups. Many of these candidates
got 55% and above in TET. They argued that as far as concession
given by the State Government as per its decision dated March 23, 2011
is concerned, the same is not warranted and relaxation up to 5% only
could be given in view of the amendment Notification dated July 29,
2011. On this premise, they want to oust all those candidates who have
B
secured less than 55% marks in TET with the plea that reserved category
candidates belonging to their group (those who secured 55% or more
marks in TET) be treated as eligible and posts meant for reserved
categories be filled up accordingly. It may be mentioned that many
candidates in their group are below in merit list drawn after the selection
c than those reserved category candidates who secured less than 55%
marks in TET and, therefore, are not selected. If the other group is
excluded from the selection as ineligible, candidates from this group may
succeed in getting the berth. So their endeavour is to oust such other
group with marks lesser than 55% in TET so that they are able to get in.
On the other hand, those candidates from reserved categories who have
D
secured less than 55% marks in TET but are found eligible in terms of
relaxation give vide the State Government's decision dated March 23,
2011 and have emerged successful in the selection have taken the position
that the said relaxation given by the State Government is valid and legal.
19. We may also pointed out at this stage itself that the State
E
Government has stood by its decision dated March 23, 2011.
20. There is yet another issue which was raised in the High Court
by the writ petitioners (candidates belonging to general category) and
has been decided by the High Court in their favour. As there is challenge
to the findings on that issue as well in these appeals, we would like to
F spell out the said issue with necessary details.
21. It so happened that many candidates who belonged to reserved
category got higher marks than t.he last candidates from the general
category who was selected for the appointment in the said recruitment
process. In terms of its various circulars, which we shall refer to at the
G appropriate stage, such reserved category candidates who emerged more
meritorious than the general category candidates were allowed to migrate
in general category. Effect thereof was that these candidates though
belonging to reserved category occupied the post meant for general
category. According to the writ petitioners (respondents herein), it was
H
VIKAS SANKHALA & ORS. ETC. v. VJKAS KUMAR 659
AGARWAL & ORS. ETC. [A. K. SIKRI, J.)

impermissible as these reserved category candidates got selected after A
availing certain concessions and, therefore, there was no reason to allow
them to shift to general category. The High Court has accepted this
plea treating the relaxation in pass marks in TET as concession availed
by the reserved category candidates in the selection process.
22. Before we advert to the detailed submissions made by the B
respective categories of the parties, it would be appropriate to discuss
the manner in which the Division Bench of the High Court has rendered
the impugned decision.
IMPUGNED JUDGMENT
23. After taking note of the respective contentions of different c
parties appearing before it, the High Court pointed out that there were
two peripheral issues which needed a decision before adverting to the
central issue about the legality of the concession granted by the State
Government. The selected candidates had challenged the maintainability
of writ petitions on twin grounds, namely, non-impleadment ofnecessary D
parties and estoppel. After discussing these preliminary issues, the Court
brushed aside these contentions of the non-writ petitioners. It is not
necessary to dwell into the same as these contentions were not repeated
before us.
While taking up the primary issue involved, the High Court referred E
to the Statement of Objects and Reasons contained in the RTE Act and
pointed out that the avowed objective for enacting the said Act is to
guarantee full time elementary education of satisfactory and equitable
quality to every child .. It remarked that the statute is edificed on the
belief that the values of equality, social justice and democracy and the
creation of a just and humane society can be achieved only through a F
provision of inclusive elementary education to all. Free and compulsory
education of satisfactory quality thus, is the salubrious mission of this
enactment. Thereafter, the High Court referred to Section 23 of the
RTE Act and further pointed out that the NCTE is the academic authority,
as envisaged in Section 23(1) of the RTE Act, statutorily empowered to G
stipulate the minimum qualifications for appointment of a teacher. Further,
power to relax such minimum qualifications has been reserved with the
Central Government in terms of Section 23(2) of the RTE Act. It, then,
referred to the notification dated August 23, 2010 issued by the NCTE
under Section 23(1) of the RTE Act laying down minimum qualifications
H
660 SUPREME COURT REPORTS [2016] 7 S.C.R.

A for a person to be eligible for appointment as a teacher in Class I to
Class VIII in a School (which have already been taken note of) followed
by another letter dated February 11, 2011 of the NCTE to the Secretaries
and Commissioners of the State Governments/ UTs and thereby
circulating its guidelines conducting the TET by appropriate Government
as required by its notification dated August 23, 2010. The High Court
B
pointed out that reading of this letter dated February 11, 2011 would
reveal the abiding predication to ensure against dilution of quality in such
recruitment, and instead, to secure induction of teachers possessed of
essential aptitude and ability to meet the challenges of teaching at the
primary and upper primary levels. While reiterating the mandate of a
c pass in the TET to be a norm of eligibility, rationale therefore was
enumerated as under:
(i) it would bring national standards and benchmark of teacher
quality in the recruitment process;
(ii) it would induce teacher education institutions and students from
D these institutions to further improve their performance standards;
(iii) it would send a positive signal to all stakeholders that the
Government lays special emphasis on teacher quality.
Conspicuously, thus, the essence of the TET was to infuse a
E qualitative content in the recruitment process and thus, set a national
benchmark forthe sake ofuniformity in the level of elementary education
in the country. It prescribed 60% or more marks in TET as pass marks
with liberty granted to the Governments to give concessions to persons
belonging to SC/ST, OBC, differently abled persons etc. in accordance
with extant reservation policy.
F
The High Court, then, pointed out that none of the parties had
challenged the competence of NCTE either to issue guide I ines dated
February 11, 2011 to conduct the TET or to vest a discretion in the State
Government to grant relaxation as contemplated therein i.e. in accordance
with the "extant" reservation policy. The High Court, thereafter,
G discussed letter dated March 23, 2011 issued by the State Government
giving concession to the extent of 10%/15%/20% to different reserved
categories but without disclosing any reference to the extant reservation
policy of the Government. The High Court ultimately found, as already
pointed out above, that the State Government could not deduce any such
reservation policy and, thus, held that in the absence of such a pol icy, the
H
VIKAS SANKHALA & ORS. ETC. v. VIKAS KUMAR 661
AGARWAL & ORS. ETC. [A. K. SIKRI, J.]

State Government could not have granted the concession, as was done A
vi de letter dated March 23, 2011.
24. Coming to notification dated July 29, 2011 which was issued
by the NCTE in exercise of its power under Section 23( I) of the RTE
Act, amending its earlier notification dated August 23, 20 I 0, the High
Court proce.~ded to discuss as to whether relaxation upto 5% in qualifying 8
marks contained therein was relatable to TET. This question had arisen
for consideration because of the reason that writ petitioners belonging to
general category had argued that vide said notification dated July 29,
2011 paragraph 3 of the principal notification dated August 23, 2010 was
substituted and the context of the said paragraph 3 was totally different.
After juxtaposing unamended paragraph 3 and amended paragraph 3,
c
the High Court pointed out that paragraph 3 of the notification dated
August 23, 20 I 0 dealt exclusively with the aspect ofNCTE recognised
six months special programme in elementary education by way of training
of persons with qualifications mentioned therein after appointment. Thus,
there was neither any comprehension nor any provision for reservation D
or relaxation of marks. Only academic qualifications with minimum
percentage of marks was referred to. Therefore, concession of 5% in
the qualifying marks pertained to the percentage of marks in the qualifying
examination of Senior Secondary/graduation etc. and had no nexus with
the pass marks in the TET.
E
The High Court further pointed out that in terms of letter dated
March 23, 2011 issued by the State Government (which was passed on
NCTE notification dated March 29, 2011 for giving relaxation qua
academic qualifications) reserved category candidates availed second
relaxation qua their academic qualifications. In this manner, they stood
doubly advantage and the impact of such relaxation had bearing on F
ultimate assessment on merit.
25. Insofar as validity of the action of the State Government in
permitting those reserved category candidates who had secured more
marks than the last candidate selected in the general category, to be
counted against unreserved category post, is concerned, the discussion G
of the High Court can be divided in two parts. The High Court referred
to certain circulars on the subject which were issued before the selection
process had commenced, these arc circulars dated June 17, 1996, March
. 04, 2002 and June 24, 2008. As per these circulars, only those reserved
category candidates who have not taken any concession (like that of H
662 SUPREME COURT REPORTS [2016) 7 S.C.R.

A age, etc.) were entitled to compete against unreserved vacancies and
be counted against them. The High Court held that since concession
was availed of by the reserved category candidates in getting relaxation
in TET pass marks, the migration to general category post was not
admissible in terms of aforesaid circulars.
B The High Court further noted that circular dated May 11, 2011
was issued in supersession of earlier circular dated March 04, 2002
which permitted reserved category candidates to be counted against
unreserved category vacancies if in the selection they have secured
more marks than the marks obtained by the last unreserved category
candidate, who is selected, irrespective of the fact as to whether they
c availed special concessions or not. The High Court held that since this
circular was issued after the initiation of selection process vide
advertisement dated March 30, 2011 it could not be app,lied to the said
selection.
On the aforesaid basis, migration of such reserved category
D candidates, though emerged as more meritorious in the selection process
than the last candidate selected in the general category, are not permitted
to migrate to the general category.
26. In conclusion, by the impugned judgment, the Division Bench
dismissed the appeals thereby upholding the direction of the learned single
E Judge in setting aside the results of RTET 2011 to the extent of
participation of reserved category candidates benefited by relaxation
granted to them by the State Government in excess of its extant
reservation policy. It directed recasting of results by declaring those
reserved candidates as ineligible and unsuccessful in the RTET 2011
F who had secured less than 60% marks in TET.
ISSUES TO BE DECIDED
27. The history of events, right upto the decision of the High Court,
gives a clear glimpse of the questions oflaw that need to be determined
by this Court. At this juncture, we would like to formulate these issues,
G asunder:
i) Whether policy of the State as reflected in its letter dated March
23, 2011 deciding to give relaxation ranging from I0% to 20% in TET
marks to different reserved categories as mentioned therein is valid in
law?
H
VIKAS SANKHALA & ORS. ETC. v. VIKAS KUMAR 663
AGARWAL & ORS. ETC. [A. K. SIKRI, J.]

ii) Whether NCTE notification dated July 29, 2011, which amends A
paragraph 3 of its earlier guidelines/notification dated February 11, 2011,
provides 5% relaxation to the reserved category for passing TET?
If so, whether it would be applicable to the reserved categories in
the State of Rajasthan as well?
iii) Whether reserved category candidates, who secured better B
than general category candidates in recruitment examination, can be
denied migration to general seats on the basis that they had availed
relaxation in TET?
QUESTION NO. 2
c
28. We would like to answer this question first as it will have some
implications and bearing on Issue No. I formulated by us above.
29. The poser here is as to whether NCTE has made any provision
providing relaxation in the passing marks for reserved category
candidates? ln order to find an answer, the documents which are to be D
scanned through, on which both sides rested their submissions, are: (i)
Notification dated February 11, 2011 containing guidelines; and (ii)
amendment thereto incorporated vide notification dated July 29, 2011,
both issued byNCTE. Insofar as guidelines dated February 11, 2011
are concerned, they pertain to conducting TET under the RTE Act, 2009.
Covering letter to these guidelines mentions that vide notification dated E
August23, 2010, NCTE had laid down the minimum qualifications for a
person to be eligible for appointment as a Teacher in Class I to Class
VIII. One of the essential qualification prescribed therein was that such
a person should pass the TET which will be conducted by the appropriate
Government in accordance with the guidelines framed by the NCTE. It F
is in that behalf that guidelines in question are framed and circulated.
Para 3 of these guidelines mentions the rationale for including the TET
as minimum qualification. Though it is already extracted, for the purpose
of cohesiveness, we reproduce it here again:
"(i) It would bring national standards and benchmark of
G
teacher quality in the recruitment process;
(ii) It would induce teacher education institutions and students
from these institutions to further improve their performance
standards;
H
664 SUPREME COURT REPORTS [2016] 7 S.C.R.

A (iii) It would send a positive signal to all stakeholders that
the Government lays special emphasis on teacher quality."
Para 4 states that such TET examination may be conducted by
a suitable professional body designated by the appropriate Government
for this purpose (Here, the State Government had designated Central
B Board of Secondary Education (CBSE), Ajmer as the professional body
to conduct such an examination). Para 5 prescribes the conditions which
are to be fulfilled by persons to become eligible for appearing in the
TET, reads as under:
"(i) A person who has acquired the academic and
c professional qualifications specified in the NCTE
Notification dated 23'd August, 20 I0.
(ii) A person who is pursuing any of the teacher education
courses (recognised by the NCTE or the RC!, as the case
may be) specified in the NCTE Notification dated 23'd
D August, 20 I 0.
(iii) The eligibility condition for appearing in TET may be
relaxed in respect of a State/UT which has been granted
relaxation under sub-section (2) of Section 23 of the RTE
Act. The relaxation will be specified in the Notification
E issued by the Central Government under that sub-section."
Para 6 gives the structure and content ofTET. Para 7 prescribes
that there wou Id be two papers of the TET, one for a person who intends
to be a teacher from Class I to Class V and other would be for a person
who intends to be a teacher for Classes VI to VIII. The details of
F
nature and standards of questions in Paper I and Paper II are also
prescribed in this para. Para 8 mentions that question papers have to be
bilingual i.e. in language(s) as decided by the appropriate Government
as well as in English language. Thereafter comes para 9 which prescribes
the qualifying marks and reads as under:
"9. A person who scores 60% or more in the TET exam
G
will be considered as TET pass. School managements
(Government, local bodies, government aided and unaided)-
(a) may consider giving concessions to persons belonging
to SC/ST, OBC, differently abled persons, etc. in
accordance with their extant reservation policy;
H
VIKAS SANKHALA & ORS. ETC. v. VIKAS KUMAR 665
AGARWAL & ORS. ETC. [A. K. SIKRI, J.]

(b) should give weightage to the TET scores in the A
recruitment process; however, qualifying the TET would
not confer a right on any person for recruitment/employment
as it is only one of the eligibility criteria for appointment."
For our purposes, it is not necessary to take note of other paras of
the said gu;delines. B
30. Vide notification dated July 29, 2011, some.amendments were
made in the aforesaid guidelines dated February 11, 2011. What is
relevant is that amendment was made to para 3 of notification/guidelines
dated February 11, 2011 which was substituted with the following amended
para: c
"III. For para 3 of the Principal Notification the following
shall be substituted, namely:
(i) Training to be undergone. -A person -
(a) with Graduation with at least 50% marks and B.Ed.
D
qualification with at least 45% marks and I year Bachelor
in Education (B.Ed.), in accordance with the NCTE
(Recognition Norms and Procedure) Regulations issued
from time to time in this regard, shall also be eligible for
appointment to Class I to V up to 1" January, 2012, provided
he/she undergoes, after appointment as NCTE recognized E
6 month Special Programme in Elementary Education;
(b) With D.Ed. (Special Education) or B.Ed. (Special
Education) qualification shall undergo, after appointment
an NCTE recognised 6 month Special Programme in
Elementary Education. F
(ii) Reservation Policy:
Relaxation up to 5% in the qualifying marks shall be allowed
to the candidates belonging to reserved categories, such as
SC/ST/OBC/PH."
G
31. It is the amended sub-para (ii) of para 3 which has become the
bone of contention as it stipulates that relaxation upto 5% in the qualifying
marks is to be allowed to candidates belonging to reserved categories.
Relying on this amendment, it is the contention of respondents belonging
to general category as well as those respondents who belonged to
H
666 SUPREME COURT REPORTS [2016] 7 S.C.R.

A reserved category but secured more than 55% marks in TET that NCTE
has stipulated 5% relaxation for TET examination, as it pertains to the
said examination. As a consequence, the action of the State Government
granting relaxation for more than 5% is impermissible. On the other
hand, argument of the appellants who belonged to reserved category
and are beneficiary of relaxation provided by the State Government vide
B
its letter dated March 23, 2011 is that the relaxation provided in the
aforesaid amended para 3 has no relation whatsoever with TET and on
the contrary, it relates to the qualifying marks in graduation and B.Ed.
etc.
32. We find merit in the contention of the appellants and do not
c agree with the respondents that the provision for relaxation upto 5% in
qualifying marks at all relates to TET. In the first instance, it is to be
noted that insofar as qualifying marks for TET are concerned, they are
prescribed in para 9 of the guidelines dated February 11, 2011. There is
no amendment to the said para. Amendment is incorporated in para 3 of
D the principal notification dated February 11, 2011 which we have already
reproduced above. Original para 3 gives the rationale for including TET
as a minimum qualification. Though, it is not understood as to why that
para is substituted by the aforesaid amended para vi de notification dated
July 29, 2011. Be that as it may, a reading of amended para 3 clearly
brings out that it incorporates two aspects. First aspect touches upon
E the training to be undergone by a person and this training can be undergone
by those persons who have certain specified marks in graduation and
D.Ed. (Special Education) or B.Ed. (Special Education). Training is for
6 months duration i.e. 6 months special programme in elementary
education. Insofar as persons having graduation and B.Ed. qualification
F are concerned, minimum marks in the graduation or B.Ed. are also
prescribed. It is stipulated that graduation should be with at least 50%
marks and B.Ed. qualification with at least 45% marks. However, those
who have done D.Ed. (Special Education) or B.Ed. (Special Education),
no mini mum marks in obtaining those qualifications are prescribed. What
follow' is that person who is graduate with B.Ed. qualification, he/she
G should have minimum 50% marks in graduation and 45% marks in B.Ed.
qualification. It is in this context second aspect of the amended provision
in sub-para (ii) of para 3 mentions about 'Reservation Policy' and allows
relaxation upto 5% in qualifying marks. This relaxation is, therefore,
clearly relatable to marks in graduation and B.Ed. qualification, meaning
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thereby insofar as reserved category candidates such as SC/ST/OBC/ A
PH are concerned, they will be treated as qualified to undergo the training
in case they pass graduation with minimum 45% marks and B.Ed.
qualification with minimum 40% marks. We are clear in mind that this
relaxation of 5% does not relate to TET at all. Had it been so, this
notification dated July 29, 2011 would have amended para 9 and,
B
particularly, sub-para (a) of para 9 which deals with concessions to
reserved category candidates that has not happened and is left intact.
33. We may mention that High Court in the impugned judgment
has also read the said amended para 3 in the same manner we have
interpreted. We affirm the view of the High Court on this specific aspect.
We would like to reproduce the following discussion from the judgment c
of the High Court wherein additional reasons for arriving at this particular
conclusion are given:
" ... This view is fortified by the letter No. F.No.61-1/2011/
NCTE/N&S dated 1.4.2011 of the NCTE addressed,
amongst others, to all Secretaries and Commissioners of D
the State Governments/UTs clarifying that following the
issuance of the notification dated 23 .8.20 I 0, it had received
representations from the State Government and other
stakeholders that in respect ofSCs/STs etc. relaxation upto
5% in the qualifying marks should be allowed, since such E
relaxation is permissible by the NCTE for admission in
various teacher education courses. Referring to the
minimum marks in the notification dated 23.8.2010, in senior
secondary (or its equivalent) or in B.A./B.Sc., it was
elucidated that following its meeting held on 16.3.2011 it
was decided that relaxation upto 5% in such qualifying marks F
would be available to SCs/STs etc., in accordance with the
extant policy of the State Government /UTs and other school
managements. There is no reference of such relaxation to
pass marks in the TET. This accommodation of the NCTE,
by way of concession of 5% marks qua the academic G
qualifications, is also evident from the provisions of the
National Council for Teacher Education (Recognition Nonns
& Procedure) Regulations, 2009 (hereinafter referred to
as '2009 Regulations') and the norms and standards for
various education courses as specified in the Appendices
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A thereto and referred to in the course of arguments on its
behalf. The explanation of the NCTE with regard to the
nature of the relaxation granted under the caption
"reservation policy" traceable to paragraph 3 of the principal
notification dated 23 .8.20 I0 with reference amongst others
to the 2009 Regulations cannot be ignored or discarded."
B
Thus, our answer to Question No. 2 is that insofar as NCTE is
concerned, it has not provided any provision for relaxation in TET
examination for reserved category candidates but has left it to the State
Governments to do the needful in this behalf, as per para 9 of guidelines
dated February 11, 2011 which remains unaltered.
c
QUESTION NO. 1
34. In view of our foregoing discussion pertaining to Question No.2,
it becomes clear th.at as far as relaxation in passing TET is concerned,
same is governed by para 9 of notification dated February 11, 2011.
0 However, before we deal with the said para in particular, we need to
recapitulate the salient facts and features in brief followed by submissions
of learned counsel for the parties in this behalf.
35. It is the common case of the parties that passing ofTET is an
essential qualification, which is a condition precedent for appointment as
E a teacher for Class I to VIII. It is in terms of qualifications letter
prescribed by the NCTE in its notification dated August 23, 20 I 0 read
with February 11, 2011. It may be mentioned in this behalf that in the
notification dated August 23, 2010, NCTE laid down minimum eligibility
qualifications for a person to be a teacher for Class I to Vil!. As per
Clause l(i) and (ii), 45% to 50% marks are required in academic
F qualification including Senior Secondary/BA-8.Sc. This very notification,
vi de sub-clause (b) of Clause (9) (i) and (ii), stipulates another eligibility
condition, i.e. passing TET which needs to be conducted by the respective
Governments in accordance with guidelines framed by NCTE. There
was no provision providing relaxation to reserved category insofar as
G academic qualifications, i.e. Senior Secondary or graduation etc., are
concerned. As far as TET is concerned, it was to be guided solely by
the guidelines to be issued by NCTE. Clause (3) prescribes nature of
the training to be undergone and minimum marks required in BA/Bsc./
B.Ed. It was followed by notification dated February 11, 2011 which
prescribes 60% or more marks in TET as pass/qualifying marks. At the
H
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AGARWAL & ORS. ETC. [A. K. SIKRI, J.]

same time, it laid down that insofar as persons belonging to SC/ST, OBC, A
differently abled persons etc. are concerned, State Government may
consider giving concessions to them in accordance with their extant
reservation policy. It also required the States to give weightage to TET
score in carrying out the recruitment of teachers. It is in pursuance to
the said clause (9) ofnotification dated February 11, 2011 thatthe State
B
Government issued communication dated March 23, 2011 deciding to
give relaxation in TET ranging from I 0% to 20% to different reserved
categories.
'36. As pointed out above, the State Government could not show
any such policy which existed prior to the issuing communication dated
March 23, 2011 regarding concession to be given to the reserved category c
persons. That has become the reason for the High Court to hold that
there was no "extant" policy of the State Government for giving relaxation
to reserved category candidates. This approach of the High Court is
criticised by the appellai1t and the argument which is raised before us is
that the decision contained in letter dated March 23, 2011 itself is a D
policy decision and should be treated as the 'extant policy'.
37. Mr. Ashwini Mata, learned senior advocate appearing in certain
appeals representing reserved category capdidates, elaborated the
aforesaid contention by arguing that the interpretation of clause 9(a) of
guideline dated February 11, 2011 is required to be interpreted while E
taking various aspects in mind i.e. the examination of TET are being
conducted every year; certificates of having passed TET is valid upto
maximum 7 years; and further that recruitment process is not conducted
every year. The later part of clause 9 of guidelines deals with the
recruitment process of teachers. In this view of matter, at the time of
recruitment process the School Management (Govt., Local Bodies, Govt. F
aided and unaided) were being given liberty to consider such a reserved
category candidates as per prevailing, alive reservation policy in regard
to concession in TET qualifying marks. He submitted that the dictionary
defines 'extant' as 'alive; prevailing at point of time'. Therefore, there
is a marked difference between the word 'existing' from the word 'extant' G
as the word 'extant' is used for any point of time. It may be for past,
present or future, whereas word 'existing' is used only in presenti.
Relaxation under State Government etc. were in relation to their respective
applicable policies at the point of recruitment. His emphasis was that
the expression "in accordance with their extant reserva1ion policy"
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670 SUPREME COURT REPORTS [2016) 7 S.C.R.

A appearing Clause 9(a) of the Guidelines dated February 11, 2011, relates
to the dominant underlying policy ofreservation at the time of taking the
TET exam which is a preclude to the conduct of the common recruitment
test. He also argued that if the interpretation of the High Court regarding
Clause 9(a) of the Guidelines dated February 11, 2011 is upheld this
would lead to the conclusion that State is forever precluded to carry out
B
any modification in the extent of relaxations to reserved categories or
modify the reserved categories after February 11, 2011 which the State
is otherwise obi iged to do under Article 16(4) and 15(4) of the Constitution.
State is not empowered but duty bound to make reservations and
relaxations under changing socio-economic scenario. Mr. Mata, on this
c basis, questioned the interpretation propounded by the High Court as
apparently ultra vires the Constitution.

38. Ms. Aishwarya Bhati who appeared for few other such
reserved category candidates added to the aforesaid submission by
arguing that in fact letter dated March 23, 2011 was not a new policy nor
D did it grant relaxation to persons who were otherwise not eligible for
reservation. She pointed out that this letter was completely in accord
with the existing reservation policy prevalent in the State ofRajasthan
as per notification dated July 31, 2009 which prescribes 49% reservation
in all Government services to persons belonging to specified categories.
E According to her, in consonance with the said reservation policy, letter
dated March 23, 2011 only prescribes specific percentage of concessions.
She further submitted that this was categorical stand of State Government
in the High Court.

39. She pointed out that the counsel for the State had also informed
F this Court, at the time of arguments, that for recruitment of Grade JII
teachers after RTET, 2011 the factual statistics were as follows:
Total posts advertised 39544
Total selections made 37317
Selections made without concessions 23978
G (it includes 5621 candidates of reserved
category who had not taken concession)
Selections made with concessions 13339

According to her, the specific statement on Affidavit by the State
as well as the aforesaid figures, make it writ large that concession granted
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AGARWAL & ORS. ETC. [A. K. SIKRI, J.]

by State Government vide its letter dated March 23, 2011 was in complete A
conformity with clause 9(a) of the guidelines dated February 11, 2011.
The NCTE has also supported this interpretation of clause 9(a) of its
guidelines, both before the High Court as well as this Court.

40. Insofar as State Government is concerned, apart from justifying
its decision to give concession in passing marks of TET, the learned B
counsel appearing forthe State also controverted the plea of the general
category candidates on the outcome of the selection process. It was
pointed out that number of candidates belonging to general category or
the candidates who has passed the TET examination on merit and have
been finally selected and appointed is more than 60% even when as per c
the State Reservation Policy, 49% seats are earmarked for candidates
belonging to different reserved categories. It is also pointed out that the
concession in TET passing marks is accorded even to women, irrespective
of the fact whether they belong to general category or reserved category.
Thus, out of 13339 candidates who became eligible to participate in the
selection process after getting concession in TET pass marks, more D
than 2000 ladies from general categories have also been benefited. This
is apart from hundreds of widowed and divorced women belonging to
general category who. have been selected after availing concession in
pass marks in TET examination.
E
4 I. On the other hand, learned counsel for the respondents
representing general category candidates submitted that in the absence
of any extant policy operating at the time when letter dated March 23,
2011 was issued, there could not have been relaxation by that letter.
The reasoning given by the High Court in the impugned judgment whereby
this plea is accepted is referred to and relied upon by these counsel. Jn F
this behalf, it was submitted that the impugned judgment of the Division
Bench records the following facts:
(i) Both before the Single Judge and Division Bench, the State had
admitted that there was no extant policy.
G
(ii) The NCTE had contended that 5% relaxation provided by its
notification of July 29, 2011 was only towards qualifying marks (academic
qualifications) and not for the TET.
(iii) Out of 40,000 posts of teachers, only 20% of the candidates
H
672 SUPREME COURT REPORTS [2016) 7 S.C.R.

A belonging to the General category have been selected as a consequence
of the above flawed measures.
42. tt was further submitted that there was no extant reservation
policy of the State ofRajasthan which was admitted not only before the
High Court but this Court as well and the so-called policy submitted
B before this Court was inapplicable as it dealt with percentage of seats
and did not relate to pass marks in the examination. It was also
emphasised thatNCTE guidelines dated February 11, 2011 aim to provide
national standards and a uniform bench mark. Therefore, all candidates,
whether belonging to general or reserved category, were required to
pass TET with minimum 60% marks, at least in the absence of extant
c policy of a particular State.
43. We have considered the respective submissions of the learned
counsel for the parties appearing before us and also gone through the
reasons given in the impugned judgment. We may state at the outset
that Notification dated July 31, 2009 of the State Government pertains to
D the reservation in all government services and does not deal with the
subject at hand. The outcome hinges upon the interpretation that is to be
given to para 9(a) of guidelines dated February 11, 2011, specifically the
meaning that is to be ascribed to "extant policy".
44. First thing that has to be borne in mind is that after prescribing
E 60% pass marks in the TET examination, provision for relaxation is made
in same para 9 giving liberty to the school management (Government,
local bodies, Government aided and unaided) to consider giving
concessions to different kinds of reserved categories mentioned therein
'which has to be in accordance with their extant reservation policy'.
F This brings out one impo11ant feature. NCTE has nowhere mandated
that there cannot be relaxation in pass marks in TET examination for
reserved category candidates or that the standard would remain uniform
irrespective of the fact as to whether a person belongs to general category
or any of the reserved categories insofar as this examination is concerned.
On the contrary, specific authorisation is given to grant special
G concessions. It, thus, accepts in principle that relaxed standard for passing
TET can be prescribed by laying down a policy in this behalf. In fact,
there is no challenge to this permissive provision. All that is argued by
general category candidates is that there is no such "extant policy",
meaning thereby if there is such a policy, the action of the State
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Government would be justified. A
45. In fact, it hardly needs to be emphasised that the Government
may prescribe relaxed standards for such reserved categories, as it is in
conformity with the spirit of the constitutional provisions contained in
Articles IS and 16 read with Articles 38, 39(a) and 46 of the Constitution,
which are enabling provisions permitting the State to make special 8
provisions and provide relaxed standards for persons belonging to
Scheduled Castes, Schedule Tribes and socially and educationally
backward classes.
46. Keeping in mind the aforesaid ethos of the Constitution, we
proceed to interpret clause 9(a) ofnotification dated February 11, 2011 c
which permits concessions to be given to certain clauses 'in accordance
with their extant reservation policy'. The question here is as to whether
it was necessary that there had to be an "existing" policy before the
State Government issued its letter dated March 23, 2011 or laying down
of such a policy in communication dated March 23, 2011 itself, may be
for the first time, would fulfill the requirement of"extant policy". We do D
not find any condition in clause 9(a) for 'pre-existing' reservation policy.
On the contrary, the provision only mentions that ifthere is a reservation
policy providing concessions to the persons belonging to SC/ST, OBC,
differently abled persons etc., concessions can be given in accordance
with the said policy. Even ifthere was no such policy in existence as on E
the date when NCTE issued guidelines dated February 11, 2011, it would
not mean that State Governments are precluded from formulating such
reservation policy even thereafter. Para 9(a) uses the expression 'extant'
reservation policy and not 'pre-existing' reservation policy. Mr. Mata,
learned senior advocate is right in submitting that a holistic reading of
para 9 of the guidelines would mean that at the time of recruitment F
process, the school managements were being given liberty to consider
and provide for concessions to reserved category candidates in TET
qualifying marks. Thus, it becomes clear that the word 'extant' means
which remains or survives. To give a practical interpretation to clause 9
of guidelines dated February 11, 2011, the phrase 'extant reservation G
policy' should be read to mean the policy surviving at the time ofTET
examination or at the most at the time of recruitment. Any other
interpretation of the said phrase would be totally impracticable and would
deprive the State for taking a decision to give relaxation to reserved
category candidates. Such interpretation cannot be applied thereby seizing
H
674 SUPREME COURT REPORTS [2016) 7 S.C.R.

A the powers of the State in recognising reserved categories and to give
relaxations and to modify them from time to time with changing socio-
economical conditions. The advertisement issued by the local authorities
for the recruitment of teachers in 2012 as well as in 2013 specifically
contains clause 7(b) that the candidate is required to be passed in TET
conducting by State ofRajasthan in accordance with the guiding principals
B
issued by NCTE. In our opinion this would meet the requirement of
'extant reservation policy' of the State.
47. It is a matter of record, which is taken note of the High Court
also, such relaxation has been granted by various State Governments
and respondents State is not only State. However, one observation made
c by the High Court needs serious consideration. It is pointed out that
except for the State of Andhra Pradesh, no other State has granted such
wide range of concessions as the State of Rajasthan did in its letter
dated March 23, 2011. This is an aspect which needs to be looked into
and needs to be reconsidered by the States inasmuch as very high
D percentage ofrelaxation may amount to compromising with quality which
may not be conducive to maintaining standards of education. However,
we are not tinkering with the extant of relaxation given in letter dated
March 23, 2011 because of the reason that on that basis, two recruitment
tests have been conducted and candidates who have been selected are
now teaching for last number of years. However, for future selections in
E this behalf, we impress upon the State Government to consider this aspect
and bring the relaxations within reasonable limits.
48. The exhortation of the High Court in the impugned judgment
that the noble purpose contained in RTE Act can be achieved by providing
free and compulsory education of satisfactory quality, cannot be doubted.
F Indeed it is a salubrious mission of the RTE Act which not only guarantees
full time elementary education to every child upto 14 years of age, but
also the quality of education which is satisfactory and equitable. The
High Court is also right in remarking that in order to impart quality
education, we need those teachers who are processed of essential aptitude
~ - G and ability to meet the challenged of teaching at the primary and upper
primary levels. No doubt, these are important considerations to achieve
the laudable objects. Forth is purpose, if passing ofTET examination is
treated as minimum essential qualification for a person to be eligible for
appointment as primary teacher, that cannot be countenanced.
However, when it comes to giving ~oncession to certain reserved
H
VIKAS SANKHALA & ORS. ETC. v. VIKAS KUMAR 675
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category candidates insofar as passing marks in TET is concerned, such A
a provision by itself will not affect the teaching quality. All said and
done, Section 23(2) of the RTE Act itself recognises the power for
relaxing the minimum qualifications required of a person to be eligible
for appointment as primary teacher. When it comes to the question of
giving relaxation in passing marks in TET, different outlook and glance
B
stands attracted. Here comes the question of taking affirmative action
for the upliftment of the Scheduled Castes, Scheduled Tribes and Other
Backward Communities/Classes.
49. Going by the scheme of the Constitution, it is more than obvious
that the framers had kept in mind social and economic conditions of the
marginalised section of the society, and in particular, those who were
c
backward and discriminated against for centuries. Chapters on
'Fundamental Rights' as well as 'Directive Principles of State Policies'
eloquently bear out the challenges of overcoming poverty, discrimination
and inequality, promoting equal access to group quality education, health
and housing, untouchability and exploitation of weaker section. In making D
such provisions with a purpose of eradicating the aforesaid ills with which
marginalized section of Indian society was suffering (in fact, even now
continue to suffer in great measure), we, the people gave us the
Constitution which is transformative in nature. Vision depicted therein
was to aim at achieving agaratarian society. Professor Upendra Baxi
brings out this transformative feature of the Indian Constitution, so E
brilliantly, in the following words:
"To be sure, the Indian Constitution frontally addresses
millennial wrongs· such as untouchability; indeed, the
constitution is transformative on this normative register. It
is historically the first modern constitution not merely to F
declare constitutionally unlawful the practice of
discrimination on the 'grounds ofuntouchability' (Article
23 and 24 ). A unique feature of these provisions consists in
the creation of constitutional offence, even to the point of
derogation of the design and detail of Indian federalism G
because Article 35 empowers a parliamentary override over
the legislative of the states within the Indian union. How
many we understand in the Indian case the differential
reconstitutions of memories ofancient wrongs as providing
the very leitmotif of constitutional change compared with
H
676 SUPREME COURT REPORTS [2016] 7 S.C.R.

A the organization of collective amnesia concerning the
Partition Holocaust? Does this question to all matter in any
understanding oflndian Constitution now at work?
True, transformative constitutionals texts and contexts
remain the very last sites for language oflove, gift, belonging
B and care. 3
50. Professor Baxi identifies three 'C's of constitutionalism'. CI
is the text of Constitution, C2 is the constitutional law which is the official
interpretation (namely, the way it is interpreted by the courts) and C3, in
the conventional sense invites attention to the normative theory or
c ideological core or even the 'spirit of constitutions'. The task of
transformating the constitutionalism is primarily that of the Courts,
particularly the Apex Court, while enforcing the provisions of the
Constitution. It is for this reason that this Court has always interpret the
3
Chapter 1: Preliminary notes on transformative constitutionalism from Transformative
D Constitutionalism: Comparing the apex courts of Brazil, India and South Africa: by
Oscar Vilhena, Upendra Baxi and Frans Viljoen (editors); South Asian Edition 20 I 4
'Though in the aforesaid Chapter, he has expanded it to 8 'C's, other 'C's are different
facets to C2. He elaborates these 'C's as under.
"Understanding the 'transformative' in BISA and related comparative
constitutional studies (COSOG) contexts entails further division of C2
E beyond the official (of authoritative) interpretation by others. Via.C4,
I designate practices of non official interpretation from the learned
professions, including public intellectuals and social and human rights
movements. CS designates all persons in a dominant position-corporate'
'financial', 'market' and ·consumer' citizens- who especially contest
C2 to advance their own strategic interest. C6 compriS'es interpretive
praxes emanating from the voice of human and social suffering of the
F rightless or the worst-off citizens and persons who claims the human
'right to have rights [This is a favorite notion of Hannah Arendt. See,
for a recent analysis, W Hamacher "The right to have a rights (four- and-
a halfremarks)' (2004) 103 So111h Atlantic Quarterly 343. See also FI
michelman 'Parsing a "right to have rights" '(1996) 3 Constellations
200.] C6 often stands articulated by communities of resistance- for
short here, on the power of social movements and human rights struggles.
G For C6 interpretive praxes to have any substantive impact on
constitutional law (C2) the hospitable figuration of activists justices
remains necessary; perhaps, this is best named as a distinctive C7.
At the same time. we also need to consider CS- the constituted powers
to suspend constitutions in the state of within- notion emergency often
named as ·armed rebellion•, or ex1ernal threats most poignantly manifest
in the contemporary grammars and rhetoric of 'wars on terror'.
H
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text of the Constitution in such a way that 'spirit' of the constitution is A
realised.
51. Examined in the aforesaid context, when our Constitution
envisages equal respect and concern for each individual in the society
and the attainment of the goal requires special attention to be paid to
some, that ought to be done. Giving of desired concessions to the reserved B
categol) persons, thus, ensures equality as a levelling process. At
jurisprudt>ntial level, whether reservation policies are defended on
compensatory principles, utilitarian principles or on the principle of
distributive justice, fact remains that the very ethos of such policies is to
bring out equality, by taking affirmative action. Indian Constitution has
made adequate enabling provisions empowering the State to provide c
such concessions. This was so eloquently stated in State of Ma<lltya
Pra<lesll & Am. v. Kumari Nive<lita Jai11 & Ors.; as under:
"26. It cannot be disputed that the State must do everything
possible for the upliftment of the Scheduled Castes and
Scheduled Tribes and other backward communities and the D
State is entitled to make reservations for them in the matter
of admission to medical and other technical institutions. In
the absence of any law to the contrary, it must also be open
to the Government to impose such conditions as would
make the reservation effective and would benefit the E
candidates belonging to these categories for whose benefit
and welfare the reservations have been made. In ai:iy
particular situation, taking into consideration the realities.
and circumstances prevailing in the State it will be open to
the State to vary and modify the conditions regarding
selection for admission, if such modification or variation F
becomes necessary for achieving the purpose for which
reservation has been made and if there be no law to the
contrary. Note (ii) of Rule 20 of the Rules for admission
framed by the State Government specifically empowers the
. Government to grant such relaxation in the minimum G
qualifying marks to the extent considered necessary .....
The relaxation made by the State Government in the rule
regarding selection of candidates belonging to Scheduled
Castes and Scheduled Tribes for admission into Medical
' ( 19s 1J 4 sec 296 H
678 SUPREME COURT REPORTS [2016) 7 S.C.R.

A Colleges cannot be said to be unreasonable and the said
relaxation constitutes no violation of Article 15( I) and (2)
of the Constitution. The said relaxation also does not offend
Article 14 of the Constitution. It has to be noticed that there
is no relaxation of the condition regarding eligibility for
admission into Medical Colleges. The relaxation is only in
B
the rule regarding selection of candidates belonging to
Scheduled Castes and S1.:heduled Tribes categories who
were otherwise qualified and eligible to seek admission into
Medical Colleges only in relation to seats reserved for
them ... "
c 52. Likewise, a Constitution Bench of this Court in M. Nagaraj &
Ors. v. U11io11 of l11dia & Ors. 6 felt it necessary to make following
remarks:
"Equality of opportunity has two different and distinct
concepts. There is a conceptual distinction between a non-
D discrimination principle and affirmative action under which
the State is obliged to provide a level-playing field to the
oppressed clas:,es. Affirmative action in the above sense
seeks to move beyond the concept of non-discrimination
towards equalising results with respect to various groups.
E Both the conceptions constitute "equality of opportunity"."
53. We would also like to reproduce an emotive, but at the same
time constitutionally justified, discourse in Dr. Jag(l{/isll Sara11 & Ors.
v. U11i011 ofl1ulitt 7 • This Court, speaking through Justice Krishna Iyer,
highlighted the constitutional mandate of providing equal opportunity to
F every member of the society, including the oppressed classes, in the
following words of wisdom:
"16. The primary imperative of Articles 14 and 15 is equal
opportunity for all across the nation to attain excellence
and this has burning relevance to our times when the country
G is gradually being 'broken up into fragments by narrow
domestic walls' in politics, economics and education, undoing
the founding faith of an undivided integrated India by
surrender to lesser appeals and grosser passions. What is
fundamental, as an enduring value of our polity, is guarantee
'"(2006) s sec 212
H '( 1980> 2 sec 768
VIKAS SANKHALA & ORS. ETC. v. VIKAS KUMAR 679
AGARWAL & ORS. ETC. (A. K. SIKRI, J.]

to each of equal opportunity to unfold the full potential of A
his personality. Anyone anywhere, humble or high, agrestic
or urban, man or woman, and whatever his religion or
irreligion, shall be afforded equal chance for admission to
any secular educational course or school for cultural growth,
training facility, speciality or employment. "Each according
B
to his ability", is of pervasive validity, and it is a latent, though
radical, fundamental that, given propitious environments,
talent is more or less evenly distributed and everyone has a
prospect of rising to the peak. Environmental inhibitions
mostly "freeze the genial current of the soul" of many a
humble human whose failure is 'inflicted'', not innate. Be it c
from the secular perspective of human equality or the
spiritual insight of divinity in everyone, the inherent
superiority cult with a herren-volk tint, is contrary to our
axiom of equality. That is why "equal protection of the laws"
for full growth is guaranteed, apart from "equality before
D
the law". Even so, in our imperfect society, some objective
standards like common admission tests are prescribed to
measure merit, without subjective manipulation or university-
wise invidiousness. In one sense, it is a false dilemma to
th ink that there is rivalry between equality and excellence,
although superficially they are competing values. In the long E
run, when every member of the society has equal
oppo11m1ity, genetically and environmentally,' to develop his
potential, each will be able, in his own way, to manifest his
faculty fully. The philosophy and pragmatism of universal
excellence through universal equal opportunity is part of
F
our culture and constitutional creed.
17. This norm of non-discrimination, however, admits of
just exceptions geared to equality and does not forbid those
basic measures needed to abolish the gaping realities of
current inequality afflicting "socially and educationally
backward classes" and "the Scheduled Castes, and the G
Scheduled Tribes". Such measures are rightly being taken
by the State and are perfectly constitutional as the State of
Kera/av.NM Thomas [( 1976) 2 SCC 31 O] has explained.
Equality and steps towards equalisation are not idle
H
680 SUPREME COURT REPORTS [2016] 7 S.C.R.

A 'incantation' but actuality, not mere ideal but real, life.
xx xx xx
39. If equality of opportunity for every person in the country
is the constitutional guarantee, a candidate who gets more
marks than another is entitled to preference for admission.
B Merit must be the test when choosing the best, according
to this rule of equal chance for equal marks. This proposition
has greater importance when we reach the higher levels of
education like post-graduate courses. After all, top
technological expe1tise in any vital field like medicine is a
c nation's human asset without which its advance and
development will be stunted. The role of high grade skill or
special talent may be less at the lesser levels of education,
jobs and disciplines of social inconsequence, but more at
the higher levels of sophisticated skills and strategic
employment. To devalue merit at the summit is to temporise
D with the country's development in the vital areas of
professional expertise. In science and technology and other
specialised fields of developmental significance, to relax
lazily or easily in regard to exacting standards of perfonnance
may be running a grave national risk because in advanced
E medicine and other critical departments of higher
knowledge, crucial to material progress, the people oflndia
should not be denied the best the nation's talent lying latent
can produce. If the best potential in these fields is cold-
shouldered for populist considerations garbed as reservations,
the victims, in the long run, may be the people themselves.
F Of course, this unrelenting strictness in selecting the best
may not be so imperative at other levels where a broad
measure of efficiency may be good enough and what is
needed is merely to weed out the worthless.
40. Coming to brass tacks, deviation from equal marks will
G meet with approval only ifthe essential conditions set out
above are fulfilled. The class which enjoys reservation must
be educationally handicapped. The reservation must be
geared to getting over the handicap. The rationale of
reservation must be in the case of medical students, removal
H
VIK.AS SANKHALA & ORS. ETC. v. VIKAS KUMAR 681
AGARWAL & ORS. ETC. [A. K. SIKRI, J.]

of regional or class inadequacy or like disadvantage. The A
quantum of reservation should not be excessive or societally
injurious, measured by the overall competency of the end-
product viz. degree-holders. A host of variables influence
the quantification of the reservation. But one factor deserves
great emphasis. The higher the level of the speciality the
B
lesser the role of reservation. Such being the pragmatics
and dynamics of social justice and equal rights, let us apply
the tests to the case on hand."
54. It hardly needs to be emphasised that the State has a legitimate
and substantial interest in ameliorating or eliminating where feasible, the
disabling effects of identified discrimination. It is a duty cast upon the
c
State, by the Constitution, to remedy the effects of "societal
discrimination". Provision for relaxation in TET pass marks has to be
looked into from this angle which is in tune with the constitutional
philosophy. After all it only ensures that such candidates belonging to
reserved category become eligible for appointment as primary teachers. D
On the other hand, when it comes to selection process such reserved
category candidates have to compete with general category candidates
wherein due regard for merit is given. Therefore, only those candidates
belonging to reserved catego1y who are found meritorious in selection
are ultimately appointed. We are of the opinion that in.this manner the
two constitutional goals, that ofrendering quality education on the one E
hand and providing "equality of opportunity" to the unprivileged class on
the other hand, are adequately met and rightly balanced.
55. We, thus, do not agree with the interpretation that is given by
the High Court and answer Question No. I holding that relaxation
prescribed in letter dated March 23, 2011 in pass marks in TET F
examination for different reserved categories mentioned therein is legal
and valid in law.
QUESTION NO; 3
56. The policy decision was contained in letter dated May 11, 2011 G
issued by the State Government thereby allowing migration ofreserved
category candidates to general category who had secured better than
general category candidates in recruitment examinations. This has been
criticised by the High Court and held to be invalid on the ground that this
was done by circular dated February 11, 2011 which was issued after
H
682 SUPREME COURT REPORTS [2016] 7 S.C.R.

A the recruitment process started with the issuance of advertisement dated
March 30, 2011 and, therefore, it was impennissible to change the nonns
after the recruitment process had been initiated.
57. In this behalf, the High Court has referred to Circular No. F-
7(2) DOP/A-Il/96 dated June 17, 1996 of the Government ofRajasthan
B whereby decision was conveyed that the candidates belonging to SC/ST
and OBC who gets selected fulfilling the conditions of eligibility regarding
age limit and attempts prescribed for general candidates can be placed
_on general merit list and those who get placement in the merit list as a
result of special concession given to them in terms of age and attempts
should not be considered as the general candidates but should be
c considered against reserve vacancies. The High Court further noted
that later circular No. F.7(1) DOP/A-2/99 dated March 04, 2002 issued
on the same subject reiterated the aforesaid position. Yet again, vide
Circular No. F.15(24) DOP/Ail/75 dated June 24, 2008, it was clarified
that only those reserved category candidates who have not taken any
D concessions (like that of age, etc.) can compete against non-reserved
vacancies and be counted against them. It also clarified that women,
persons with disabilities, sportspersons, in-servicemen are counted against
their respective category, even if they are suitable for selection against
non-reserved or open competition vacancy/post. However, if any
remaining candidate of these categories after providing the vacancies/
E posts reserved for them are more meritorious than the last person of the
open competition category, such candidate will be selected even if it
leads to selection of more candidates than that provided by virtue of
reservation. On the basis of the aforesaid circulars, the High Court
commented that only those reserved category candidates were entitled
F to be migrated to general quota if they complete with availing any special
concessions in terms of age, attempts and otherwise except concession
regarding fee. However, this norm was changed by impugned Circular
No. F. 7( 1)DOP/ A-11/99 dated May 11, 2011 which was issued in
supersession of the earlier circular dated March 04, 2002 and permitted
reserved category candidates to be counted against unreserved category
G vacancies if in the selection they had secured more marks than the marks
obtained by the last unreserved category candidate who. is selected,
irrespective of the fact that as to whether they avail special concessions
or not. As pointed out above, the High Court has held that since this
change in norms took place after the initiation of selection process vi de
H
VIKAS SANKHALA & ORS. ETC. v. VIKAS KUMAR 683
AGARWAL & ORS. ETC. [A. K. SIKRI, J.]

advertisement dated March 30, 2011, the circular dated May 11, 2011 A
was not applied as the aforesaid move/amendment in selection norms
was impermissible as held oy this Court in K. Manjusree v. State of
Andlira Pradesh & Anr. 8
58. The learned counsel appearing for reserved category
candidates/appellants submitted that passing ofTET examination is just B
one of the eligibility criteria and cannot be treated as part of the
recruitment process and, therefore, cannot be counted as given relaxation
or concession availed by the reserved category candidates. On that
basis, it was sought to argue that even if circular dated May 11, 2011 is
ignored, as per the policy contained in earlier circulars, those reserved
category candidates who had secured more marks than the last candidate c
selected in the general category, were entitled to be counted against
unreserved category posts. It was also pointed out that insofar as
recruitment process is concerned, weightage of 20% of TET marks
was given in the final score. This flat weightage of20% ofTET marks
given to all candidates irrespective of the categories to which they belong D
provided a level playing field. In this manner, those candidates who had
secured more marks in TET were placed at advantageous positions by
giving the said weightage. The other effect was that those candidates in
reserved category who had secured less marks than 60% and became
eligible to participate in the selection process by virtue of concession in
the eligibility criteria ofTET pass marks, naturally got less marks under E
this head. Therefore, as far as recruitment process is concerned, no
such benefit had accrued to the reserved category candidates. It was
also argued that principle of estoppel would apply as the general category
candidates did not challenge the recruitment process including the
advertisement and filed the writ petitions only after they found themselves F
to be unsuccessful on declaration of the results of the recruitment.
Reference in this behalf is made to the judgment in the case of Vijendra
Kumar Verma v. Public Service Commission, Uttarakliand & Ors. 9
It was further pointed out that during the pendency of the matter before
this Court, appointments were made by the respective local bodies with
respect to recruitment of2012 giving relaxation in accordance with the G
State policy dated March 23, 2011 and also allowing migration as per
policy dated May I I, 2011 subject to the decision of this Court. The
participants of reserved category candidates in recruitment process of
'<2oos) 3 sec 512
'<201I)1sec150 H
684 SUPREME COURT REPORTS [2016] 7 S.C.R.

A 2012 and 2013 preferred SLP (C) No. 31109 of2014 wherein this Court
issued notice and allowed the appellant Nos. 8 to 13 belonging to 2013
recruitment to file SLP. In March, 2015, result declared with regard to
recruitment of 2013 giving relaxation in accordance with State policy
dated March 23, 2011. However, appointments are not given to reserved
category candidates availing relaxation although seats have been kept
B
vacant. Moreover, migration to general seats was not allowed. The
appellants in SLP(C) No. 31109 of2014 belonging to 2013 recruitment,
moved I.A. No. 14 of2015 seeking direction to the State to prepare
merit list of 2013 recruitment in the same manner as done in 2012
recruitment giving benefit of relaxation and migration. In fact, after
c 2011, TET was again conducted by the State in 2012. The reserved
category candidates who had passed TET with relaxations in 2011 did
not appear in 2012 TET since they were declared pass in 2011 TET
itself. Otherwise, they would have availed the opportunity to improve
their TET scores by appearing in TET in 2012.

D 59. The learned counsel for the general category candidates, on
the other hand, maintained that TET was a part of recruitment process
and relaxation in passing marks in that examination amounted to giving
concession to reserved category candidates and after availing such
concession they were not entitled to migrate to general category. It
was also submitted that insofar as decision of the State contained in
E letter dated May 11, 2011 is concerned, it was rightly held by the High
Court that norms could not be changed after the selection process has
started.
60. Having regard to the respective submissions noted above,'first
aspect that needs consideration is as to whether relaxation in TET pass
F marks would amount to concession in the recruitment process. The
High Court has held to be so on the premise that para 9(a) dealing with
such relaxation in TET marks fonns part of the document which relates
to the recruitment procedure. It is difficult to accept this rationale or
analogy. Passing of TET examination is a condition of eligibility for
G appointment as a teacher. It is a necessary qualification without which
a candidate is not eligible to be considered for appointment. This was
clearly mentioned in guidelines/notification dated February 11, 2011.
These guidelines pertain to conducting ofTET. Basic features whereof
have already been pointed out above. Even para 9 which provides for
concessions that can be given to certain reserved categories deals with
H
VIKAS SANKHALA & ORS. ETC. v. VIKAS KUMAR 685
AGARWAL & ORS. ETC. [A. K. SIKRI, J.]

'qualifying marks' that is to be obtained in TET examination. Thus, a A
person who passes TET examination becomes eligible to participate in
the selection process as and when such selection process for filling up
of the posts of primary teachers is to be undertaken by the State. On
the other hand, when it comes to recruitment of teachers, the method
for appointment of teachers is altogether different. Here, merit list of
B
successful candidates is to be prepared on the basis of marks obtained
under different heads. One of the heads is marks in TET. So far as this
head is concerned, 20% of the marks obtained in TET are to be assigned
to each candidate. Therefore, those reserved category candidates who
secured lesser marks in TET would naturally get less marks under this
head. We like to demonstrate it with an example. Suppose a reserved c
category candidate obtains 53 marks in TET, he is treated as having
qualified TET. However, when he is considered for selection to the post
of primary teacher, in respect of allocation of marks he will get 20%
marks for TET. As against him, a general candidate who secures 70
marks in TET shall be awarded 14 marks in recruitment process. Thus,
D
on the basis ofTET marks reserved category candidate has not got any
advantage while considering his candidature for the post. On the contrary,
"level playing field" is maintained whereby a person securing higher
marks in TET, whether belonging to general category or reserved category,
is allocated higher marks in respect of 20% of TET marks. Thus, in
recruitment process no weightage or concession is given and allocation E
of20% ofTET marks is applied across the board. Therefore, the High
Court is not correct in observing that concession was given in the
recruitment process on the basis of relaxation in TET.
61. Once this vital differentiation is understood, it would lead to
the conclusion that no concession becomes available to the reserved F
category candidate by giving relaxation in pass marks in TET insofar as
recruitment process is concerned. It only enables them to compete with
others by allowing them to participate in the selection process. In this
backdrop, irrespective of circular d'ated May 11, 2011, the reserved
category candidates who secured more marks than marks obtained by
the last candidate selected in general category, would be entitled to be G
considered against unreserved category vacancies. However, it would
be subject to the condition that these candidates have not availed any
other concession in terms of number of attempts, etc., except on fee and
age.
H
686 SUPREME COURT REPORTS [2016) 7 S.C.R.

A 62. In Jitendra Kumar Singh & Anr. v. State of Uttar Pradesh
& Ors. 10, this Court has very categorically held that relaxations given in
educational qualifications etc. making a person eligible to participate in
selection process would not be treated as availing benefits in the
recruitment/employment and the benefits envisaged have to be those
which have direct relation to recruitment/employment and are relatable
B
to the jovial relationship of employer and employee. It is also clarified
that such benefits must occur from and should be post 'level playing
field'. We would like to reproduce the following discussion from the
said judgment touching upon the aforesaid aspects:
"48. In view of the aforesaid facts, we are of the considered
c opinion that the submissions ofthe appellants that relaxation
in fee or age would deprive the candidates belonging to the
reserved category of an opportunity to compete against the
general category candidates is without any foundation. It is
to be noticed that the reserved category candidates have
D not been given any advantage in the selection process. All
the candidates had to appear in the same written test and
face the same interview. It is therefore quite apparent that
the concession in fee and age relaxation only enabled certain
candidates belonging to the reserved category to fall within
the zone of consideration. The concession in age did not in
E any manner tilt the balance in favour of the reserved
category candidates, in the preparation of final merit/select
list.
49. It is permissible forthe State in view ofArticles 14, 15,
16 and 38 of the Constitution oflndia to make suitable
F provisions in law to eradicate the disadvantages of
candidates belonging to socially and educationally backward
classes. Reservations are a mode to achieve the equality
of opportunity guaranteed under Article 16(1) of the
Constitution oflndia~ Concessions and relaxations in fee or
G age provided to tli_e reserved category candidates to enable
them to compete and seek benefit of reservation, is merely
an aid to reservation. The concessions and relaxations place
the candidates on a par with general category candidates.
It is only thereafter the merit of the candidates is to be
1•<2010) J sec 119
H
VIKAS SANKHALA & ORS. ETC. v. VIKAS KUMAR 687
AGARWAL & ORS. ETC. [A. K. SIKRI, J.]

determined without any further concessions in favour of A
the reserved category candidates.
xx xx xx
75. In our opinion, the relaxation iQ age does not in any
manner upset the "level playing field". It is not possible to
accept the submission of the learned counsel for the B
appellants that relaxation in age or the concession in fee
would in any manner be infringement of Article 16(1) of
the Constitution oflndia. These concessions are provisions
pertaining to the eligibility of a candidate to appear in the
competitive examination. At the time when the. concessions c
are availed, the open competition has not commenced. It
commences when all the candidates who fulfill the eligibility
conditions, namely, qualifications, age, preliminary written
test and physical test are permitted to sit in the main written
examination. With age relaxation and the fee concession,
the reserved candidates are merely brought within the zone D
of consideration, so that they can participate in the open
competition on merit. Once the candidate participates in
the written examination, it is immaterial as to which category,
the candidate belongs. All the candidates to be declared
eligible had participated in the preliminary test as also in the E
physical .test. It is only thereafter that successful candidates
have been permitted to participate in the open competition."
·It is stated at the cost of repetiti9n that provision of giving 20%
_ marks of TET score was applied to all candidates irrespective of the
category to which he/she belongs and, therefore, no concession or F
relaxation or advantage or benefit was given in this behalf which could
disturb the level playing field and tilt advantage in respect ofreserved
category candidate. On the contrary, the reserved category candidates
who had secured less marks in TET examination are given lesser marks
in the recruitment process on the application of the formula of allocating
20% marks ofTET score. Question No. 3 is answered accordingly.· G

63. These appeals are accordingly allowed in the manner indicating
in this judgment, effect whereof would be as under:
(a) Those reserved categofY candidates who secured pass marks
on the application ofrelaxed standards as contained in the extant policy
H
688 SUPREME COURT REPORTS [2016] 7 S.C.R.

A of the Government in its communication dated March 23, 2011 to be
tre14ted as having qualified TET examination and, thus, eligible to
participate in the selection undertaken by the State Government.
(b) Migration from reserved category to general category sh al 1be
admissible to those reserved category candidates who secured more
B marks obtained by the last unreserved category candidates who are
selected, subject to the condition that such reserved category candidates
did not avail any other special concession. It is clarified that concession
of passing marks in TET would not be treated as concession falling in
the aforesaid category.
c All these appeals are disposed of accordingly. No order as to
cost.
Nidhi Jain Appeals disposed of.